SZMAD v Minister for Immigration & Citizenship
[2008] FCA 1275
•12 August 2008
FEDERAL COURT OF AUSTRALIA
SZMAD v Minister for Immigration & Citizenship [2008] FCA 1275
SZMAD v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 842 OF 2008JACOBSON J
12 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 842 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZMAD
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
12 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 842 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZMAD
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
12 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction and Background
This is an appeal from orders made by Driver FM dismissing an application for review of a decision of the Refugee Review Tribunal dated 23 January 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 19 June 2007 on a passport issued in a name different from his actual name. He applied for a protection visa on 19 July 2007. The delegate refused the protection visa in a decision notified to the appellant on 12 October 2007.
The appellant claimed to have a well-founded fear of persecution on political grounds. His claims were set out in a statutory declaration sworn on 19 July 2007. He claimed to have worked as an engineer in a state-owned construction company and said that in early 2000 he established a construction team to enter into, and carry out, contracts for various building projects.
A person, who I will refer to as Mr Q, began to work for the appellant’s construction team in around 2003. During 2005 the appellant’s construction team was engaged in the construction of a primary school in Mr Q’s home province. However, an amount of approximately RMB800,000 was owed to the appellant’s company by the local government authority for which the school was constructed.
The appellant went on to swear in his statutory declaration that he and Mr Q organised a sit-in during December 2006 in order to put pressure on the government authority to pay the unpaid construction fees. However, the appellant said the protest was suppressed by the police and that he and Mr Q were arrested because they were said to have been involved in an anti-government movement. The appellant also claimed that he and Mr Q were detained for more than a month by the public security bureau (PSB) in the period from December 2006 to January 2007. He said they were interrogated by the police but that they were finally released about the end of January 2007.
The appellant also claimed in his statutory declaration that he and Mr Q were involved in a large rally in Mr Q’s home province as a consequence of the death of Mr Q’s brother who apparently died from AIDS. He said that police surrounded the village and a number of local villagers were arrested. He also said that he had been wanted by the PSB ever since then as a result or organising anti-government activities. He claimed that he was in hiding in “a secret place” for some period before he eventually left China.
The Decision of the Refugee Review Tribunal
The Tribunal was satisfied that the appellant left China under a false passport. The Tribunal said that it would deal later in its reasons with the question of whether the reason the appellant left under a false passport was due to a fear of persecution or some other reason. However, it did not directly do so. It is important to note though, that the Tribunal did make a finding that the appellant did not hold a well-founded fear of persecution.
The Tribunal was satisfied that although the appellant referred in his statutory declaration to his wish to help AIDS sufferers, his claims when considered as a whole were based upon the difficulties he had with the authorities arising from the failure to pay the outstanding construction fees. The Tribunal was of the view that the substance of the claim was that corrupt officials wanted to stop the appellant demanding money owed by the local government to the appellant’s company.
The Tribunal accepted that the appellant and Mr Q had participated in the sit-in in December 2006. (The Tribunal referred to December 2005 but this seems to be a typographical error). The Tribunal accepted that this claim was motivated by the appellant’s desire to be paid the balance of the money owed to his firm.
The Tribunal also accepted that the appellant and Mr Q were detained by the police for several weeks in December 2006. Moreover, the Tribunal was of the view that the appellant was ill-treated at that time, observing that such treatment unfortunately seems to be commonplace in police stations in China.
However, the Tribunal did not accept the appellant’s evidence as to the events said to have occurred in April 2007. The Tribunal said that it had carefully considered the appellant’s evidence about the Memorial Day gathering in support of AIDS victims and the protests which were said to have been undertaken at that time against corrupt officials but it rejected that evidence.
The Tribunal gave a number of reasons for this finding. The substance of the reasons was that the appellant did not give clear explanation and in some respects that the claim was “far-fetched” and inconsistent with other evidence, in particular that the police had unconditionally released him in January of that year. The Tribunal was satisfied that if the authorities had been aware of the appellant’s presence at the April 2007 protest and had wished to arrest him they could readily have done so. The Tribunal went on to say that the failure of the authorities to arrest the appellant at that time “reliably indicates” that the authorities had no interest in detaining him. Accordingly the Tribunal was satisfied that the appellant did not have a well-founded fear of persecution in China on Convention grounds.
Decision of the Federal Magistrate
In his application for review before Driver FM, the appellant claimed that the Tribunal was biased because it accepted some major elements of his claim but rejected others. The appellant also asserted a breach of s 424A of the Migration Act 1968 (Cth). Federal Magistrate Driver, at [4], rejected the appellant’s contentions. His Honour pointed out that the mere fact that a Tribunal accepts some claims and rejects others does not indicate bias or any unfairness in a legal sense. The learned Federal Magistrate was of the view that the Tribunal had adopted the correct approach to the question of whether the appellant had a well-founded fear of persecution within the principles stated by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The Federal Magistrate observed at [6] that the appellant was unable to persuade the Tribunal that he had a profile which would cause the authorities in China to have a continuing adverse interest in him.
The Federal Magistrate rejected the ground of review based on s 424A of the Act upon the basis that the particulars which the appellant identified as being particulars that were required under that section were merely difficulties which the Tribunal had in evaluating the appellant’s evidence.
The learned Federal Magistrate also dealt with the question of the appellant’s evidence that he had used a false passport to enter Australia. His Honour considered that the Tribunal should have answered that specific question but he considered that no jurisdictional error resulted because the Tribunal had answered the question it was required to answer pursuant to the Act, namely whether the appellant had a well-founded fear of persecution in China on Convention grounds.
The Appeal
The appellant appears this morning in person. He has had the assistance of Mandarin interpreter. He claimed that he had been unfairly treated by the Federal Magistrates Court and the Refugee Review Tribunal.
He made particular reference to the failure of the Tribunal to answer the question that it had posed for itself as to why he left China under a false passport. He also dealt with that question in his written submissions. His written submissions also dealt with the issue raised before the Federal Magistrate, namely that some of his evidence had been accepted and he therefore submitted that the Tribunal failed to properly apply the real chance test.
I have come to the view that there was no error in the learned Federal Magistrate’s finding that the Tribunal applied the real chance test stated by the High Court in Guo, in particular at 572 and 574-577. As his Honour observed, the findings which the Tribunal made were open to it. Nor, in my view, is there any error in the Federal Magistrate’s finding that the complaint made about the failure to deal expressly with the passport question disclosed no jurisdictional error. The answer to this contention is that for whatever reason the appellant left China under a false passport, it was not necessary for the Tribunal to consider that question expressly because it found that the appellant did not have a well-founded fear of persecution. That is to say, even if he had a subjective fear, he did not have an objective fear within the requirements of the Refugees Convention.
I have considered the other matters referred to in the Notice of Appeal and the appellant’s written submissions. In my view there is no error in the reasons of the Federal Magistrate nor can I see any jurisdictional error in the decision of the Refugee Review Tribunal.
Conclusion and Orders
It follows that I order that the appeal be dismissed. I will order that the appellant pay the costs of the first respondent of the appeal.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 19 August 2008
Counsel for the Appellant: The Appellant was self-represented. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 August 2008 Date of Judgment: 12 August 2008
2
1
0